Cathrine Moyo (in her capacity as Executrix Dative of the Estate of the Late Hadson Moyo) N.O. v Josman Chikahwi and Others

The late Hadson Moyo entered into a written agreement of sale with the 1st respondent on 10 November 2014 to purchase Darkhorse 99 Mine at Marrivale Ranch in Kwekwe for US$32,000. He paid a US$2,000 deposit but failed to pay the balance of US$10,000 due by 15 December 2014, or any remaining amounts. The 1st respondent repossessed the mine during the late Hadson Moyo's lifetime due to non-payment, and no transfer was ever effected. The late Hadson Moyo owned and worked an adjacent claim, Darkhorse 72 of Marrivale. After his death, the applicant, as Executrix Dative of his estate, alleged that the 1st respondent's employees invaded the mining claims on 4 April 2018 with picks and shovels. The applicant filed an urgent application for a spoliation order on 20 April 2018, claiming she was in possession of Darkhorse 99 and had been unlawfully dispossessed. The applicant claimed the balance of the purchase price had been paid, though provided no proof, and attached portions of a purported agreement dated 5 May 2016, claiming she could not find the rest.

• Whether the application was urgent and properly brought as an urgent chamber application
• Whether the applicant established peaceful and undisturbed possession of the mining claims sufficient to ground a spoliation order
• Whether the applicant's reliance on an allegedly fraudulent or non-existent agreement vitiated her application
• Whether an applicant who seeks urgent relief on the basis of misrepresentation and falsehoods should be entertained by the court

The application was dismissed with costs.

An applicant who approaches the court on an urgent basis seeking to be heard ahead of other litigants must exhibit a high degree of honesty and place before the court accurate and credible information. Where alleged urgency arises from a background based on misrepresentation and falsehoods, the court should show its displeasure by not entertaining the application at all. Urgency is contrived and not established where an applicant delays in bringing the application after the alleged spoliation and where the applicant cannot establish peaceful and undisturbed possession of the property in question. A spoliation order cannot be granted where the applicant's assertions regarding ownership, payment, and possession cannot withstand scrutiny and appear to be based on fraudulent documentation.

The court observed that it was unclear whether the application was truly for spoliation or for an interdict, as the applicant's founding affidavit suggested it was "an application for an interdict against respondents for the restoration of possession of the property on the basis that the dispossession was illicit and an act of spoliation." The court also noted that if the applicant sought to assert her perceived rights in respect to the disputed claims, she must do so by way of a proper court application (implying not through an urgent spoliation application). The court commented that where an applicant's late husband owned and worked an adjacent claim (Darkhorse 72), and there was clear dispute about ownership and occupation of the claim in question (Darkhorse 99), this pointed away from the undisturbed possession required for spoliation relief.

This case reinforces the stringent requirements for urgent applications in Zimbabwean law, emphasizing that applicants must demonstrate genuine urgency and act promptly when the need arises. It establishes an important principle regarding the duty of candour owed by applicants seeking urgent relief, particularly in spoliation matters. The judgment underscores that courts will not tolerate applications based on misrepresentation, falsehoods, or fraudulent documents, especially where the applicant seeks to jump the queue ahead of other litigants through a certificate of urgency. The case also illustrates the essential elements required for a spoliation order, particularly the need to establish peaceful and undisturbed possession of property before dispossession can be claimed.